Split the Legal Profession
Jon Roland
January 12, 2002
http://www.constitution.org/col/split_legal.htm
There is a fundamental problem with having a single legal profession
when the subject matter of law tends to divide into advocacy law and
compliance law. Law schools train advocates to win cases for their
clients, but most legal practice is concerned with enforcing or
complying with existing law, and the background of knowledge and
skills needed for each kind of law are quite different.
In England and most of its former colonies, the legal profession is
split into barristers and solicitors. Traditionally, a barrister
gives specialist advice on detailed legal issues and represents
clients in court on both civil and criminal cases, whereas a
solicitor gives initial legal advice, instructs a barrister, if
necessary, and liaises between the client and the barrister. In the
United States a similar distinction has emerged between lawyers and
paralegals, although paralegals have not been accorded the status or
right to practice that English solicitors have. However, there seems
to be a general drift in that direction.
This is to propose a split of the legal profession into two
branches, and two or more levels in each branch. The branches would
be called advocates and pretors, and the levels barristers and
solicitors, making four divisions, each with its own educational
track and certification standards. There would also be additional
certification standards for legal specialities.
Advocates, both barrister advocates and solicitor advocates, would
be trained much the way lawyers are today, but the solicitors would
only be required to pass a test to get certified, regardless of
whether they attend a law school, whereas the barristers would be
required to do a certain amount of legal writing and practice under
a barrister's supervision to be certified.
Pretors, both barrister pretors and solicitor pretors, would be
trained with a greater focus on history, both constitutional and
legislative, rather than on precedents or winning cases for their
clients. It would be directed more toward practice as judges, law
enforcement agents, teachers, researchers, and corporate
practitioners. Barrister pretors would focus on things like
drafting and complying with constitutions and statutes, whereas
solicitor pretors would focus on things like drafting and complying
with contracts. For certification, the solicitor pretors would only
be required to pass a test, whereas the barrister pretors would be
required to do a certain amount of original scholarly writing.
Academically, there might also be a split within the subject of
nomology, the science of law, between applied nomology and
theoretical nomology, and courses would be designated as such in the
syllabus. The education of pretors would be much more theoretical
and historical.
As a certificate, the J.D. might be the certificate of advocates,
and the Ph.D. of pretors. Those who appoint or recommend persons
for judicial positions would be encouraged to prefer persons with a
pretorial education.
Ultimately, law schools themselves might specialize among these
branches and levels, or even specialize in particular fields, and
separate bar associations would be formed for each branch, level,
and specialty, so that there would no longer be a single, monolithic
bar association exercising undue influence on the profession.
Each branch might also have its own paralegals, as a level below
that of solicitor, also requiring only passing a test for
certification. Advocate paralegals would be trained to assist
barrister and solicitor advocates, and pretor paralegals to assist
barrister and solicitor pretors. Thus, the former would tend to
work as law clerks for advocates, and the latter as law clerks for
judges. Paralegals might be further divided into levels and
specialties, much as nurses are in the medical profession.
This is to further propose that none of these certifications would
be treated as a license to practice, or as part of such a license.
There is a fundamental constitutional problem with licensing any
occupation, because it turns a right into a privilege, and that must
never be done. A system of disclosed certifications, and
requirements for disclosure of complaints and of judicial
disablements for cause, should be all that is needed to prevent
fraud, without supporting a regime by which dissident practitioners
can be discriminated against for their reformist views or their
actions, such as suits for malpractice.